My Lords, I thank the Minister and her officials for talking us through these regulations at a meeting yesterday. I am very grateful for her time. Despite her enthusiasm, I had to supress a weary sense of déjà vu about this, but then I thought of an upside. When the history of this Parliament is written, this SI will go down as one of the significant pieces of legislation passed during this Session which, after all, has lasted only a couple of weeks, so it will have its place in history and therefore I set my mind to looking at it with rather more attention and diligence. But my whole spirit protests at the amount of time that we, and particularly officials, have spent preparing for a no-deal Brexit—an issue which is so damaging that it should never have been a credible option.
This SI fixes deficiencies in previous drafting, as the Minister has noted. I believe that there are four of them; that is quite a lot for such a short piece of legislation. My concern is that officials have been under such pressure to churn out such no-deal legislation, if I can call it that, that it has been very difficult for them to maintain the usual high standards. I had a quiet laugh at the opening line of paragraph 2 of the Explanatory Memorandum, which tells us:
“The Government is committed to leaving the European Union on 31 October”.
I will come back to this later on.
The core purpose of this SI is to put in place a system of recognition of Part A safety certificates for rail operators. It introduces a two-year recognition period, which is flexible according to the renewal date. As the Minister has pointed out to us, this affects only one company but it is symptomatic of the ridiculous position that we are in. Part A certificates are currently EU-portable; the company concerned therefore only has to get them once, and they apply in all EU countries where that company operates. It is proposed that, in future, the ORR will issue Part A certificates. As a result, as the Secondary Legislation Scrutiny Committee’s report observes:
“ORR issued Part A safety certificates will be substantially the same in terms of content compared to EU issued Part A safety certificates, including the requirements necessary to obtain
one. However, after the UK leaves the EU ORR issued Part A certificates will not have EU identification numbers, EU symbols or references to the EU. ORR issued Part A safety certificates will not be valid in the EU”.
This is about creating something which is identical in intent but has a different badge. It creates more complexity and bureaucracy; it is very far from the rosy image we were sold in 2016. The effect is of course that the company concerned, and any other company which might come along and need this certificate, will have to get two certificates rather than only one. What is more, since it is a criminal offence to operate a railway without a Part A certificate, the criminal offence has to be adjusted too. What will happen to the mountain of paperwork and complexity that we have created when, or if, we decide not to leave the EU after all? Are we going to have to unwind it painfully, SI by SI, or could we have just one mega-piece of legislation saying: “Forget what we have done for the last year”?
5.45 pm
I have another question for the Minister. Paragraph 2.5 of the Explanatory Memorandum says:
“The UK notified the Commission on 29 November 2018 that it intended to transpose the recast Railway Safety Directive by the later permitted transposition deadline of June 2020, though this will depend on the nature of Brexit on 31 October 2019”.
Can the Minister please update us on what the date will be now, since we have not left on 31 October 2019? We are now rolled forward to 31 January 2020. What does this do to those dates? It is important to have that on record because it is, of course, an issue for the railway industry.
Paragraph 2.16 of the Explanatory Memorandum refers to the potential for the ORR to charge a fee. I was relieved to see that it is not intending to do so, but it can as a result of this. Can the Minister indicate what sort, or size, of fee is likely?
Finally—the Minister referred to this in her speech—this SI uses the “made affirmative” procedure. The Minister concerned has attested that this procedure is necessary because this is an urgent piece of legislation, but it is no longer urgent. It was urgent when we were leaving on 31 October or possibly leaving without a deal, but it is no longer urgent until we get to the January deadline. Circumstances have changed. I am concerned, and want to put on record, that the Government have not rethought their approach to this SI and have continued to use this procedure even though the circumstances have changed.